A U.S. District Court judge has ruled Gwinnett County, Ga., violated the Telecommunications Act of 1996 by denying BellSouth Mobility Inc. a permit to construct a monopole cellular tower.
In a 17-page opinion, Judge G. Ernest Tidwell of the U.S. District Court for the Northern District of Georgia, said the Gwinnett County Board of Commissioners’ denial of the permit was not supported by substantial evidence contained in a written record as required under the act. The board was ordered to grant a tall structure permit to BellSouth.
BellSouth submitted an application in February to erect a monopole tower in a commercially zoned area, according to court documents. BellSouth described the structure as a “197-foot monopole together with a 326-square-foot unmanned, single-story, prefabricated concrete switch gear building.” The structures were to be enclosed by an 8-foot chain link fence with barbed wire on the top.
Scott McLaren, who along with Peter Degnan represented BellSouth in the lawsuit, said the county has a permit ordinance that allows the board to deny an application if the proposed structure is inconsistent with the aesthetic value of the surrounding property and if the structure could potentially interfere with or endanger the public.
“We submitted various documentary evidence (reports, surveys and boundary plans), and we complied with various requirements of the ordinance,” said McLaren of the Atlanta-based law firm of Alston & Bird. But there was significant community opposition to the tower, he said.
In an April county commissioners’ meeting, BellSouth and local homeowners were given five minutes each to state their arguments for and against the tower. Court documents said BellSouth submitted evidence that included an appraiser’s report, a line of site survey and a list of the company’s efforts in trying to find other suitable sites for the tower. A homeowner whose property was near the proposed site voiced concerns about safety, aesthetics and decreased property values associated with the tower.
After the board heard both sides of the argument, it voted to deny BellSouth’s application, said McLaren. “We were basically forced to file suit … There was no direct appeal from our denial under any zoning statutes.”
Relying on two legal theories-the Telecommunications Act and a state law mandamus theory-BellSouth argued the board did not rely on substantial evidence when it voted to deny the company’s permit, said McLaren.
The judge agreed saying, “the only record evidence supporting the board’s decision is the content of [the homeowner’s] five-minute testimony. In light of the compelling evidence presented by the plaintiffs, however, the court finds that [the homeowner’s] generalized concerns do not constitute substantial evidence supporting the board’s decision.”
The judge also denied the county’s contention that it be allowed to reconsider the permit application based on the substantial evidence criteria.
“This (case) sets a precedence that if a county government is to deny a permit for telecommunications facility, it cannot be based merely on community pressure,” said McLaren. “The effect of the ruling indicates the judiciary will be aggressive in enforcing the intent of the Telecommunications Act and will actually overturn governmental decisions that are violative of the act.”
Prior to the board’s hearing on the matter, BellSouth said it met with local homeowners to address their concerns. According to court documents, BellSouth amended its original permit application by agreeing not to operate microwave equipment on the site as well as to paint and avoid lighting the monopole.
“We met with the neighborhood group and said that we would paint it any color you want and adjust the height. We met their concerns,” said Jeff Battcher, regional marketing manager at BellSouth. “We have always reached some kind of agreement (with communities). We were just painted in a corner. We made exhaustive efforts to work it out and did whatever we could.”
“BellSouth really didn’t look at all their options and just decided they had to have this tower there and not somewhere else,” said Jill Seligman, one of four attorneys who represented the county from Norcross, Ga.-based Thompson, O’Brien, Kemp & Nasuti. “It is literally in people’s back yards. The visibility of it is tremendous. We did an engineering study, and it is visible from hundreds of homes and subdivisions. The location is right down the street from a school and practically behind and close to a day care center.”
Seligman said a better site was located near an interstate that adjoined a public parkway. “It would have been a lot more out of the way and more sheltered from the business district and homes,” she said.
Battcher contends the site was needed to fill BellSouth’s coverage gap in the area. He said BellSouth made efforts to collocate a tower with a local cable operator but negotiations failed.
Local governments are just beginning to realize the impact of the telecommunications act, and they’re finding they may be forced to spend large amounts of money to keep towers out of their constituents’ backyards.
“I think that’s one of the real issues facing local government. The act doesn’t say you can’t deny. Unless you have a good reason, it will take thousands of dollars of studies to support a decision,” said Seligman. “Are you going to tell homeowners that they need to hire an appraiser and engineer or does the county underwrite this?”
